Posted!

Join the Conversation

Comments

Welcome to our new and improved comments, which are for subscribers only.
This is a test to see whether we can improve the experience for you.
You do not need a Facebook profile to participate.

You will need to register before adding a comment.
Typed comments will be lost if you are not logged in.

Please be polite.
It's OK to disagree with someone's ideas, but personal attacks, insults, threats, hate speech, advocating violence and other violations can result in a ban.
If you see comments in violation of our community guidelines, please report them.

U.S. District Judge Keith Watkins on Tuesday will hear what may be the final arguments in a lawsuit that challenges Alabama’s death penalty protocol.

The litigation began in 2011 when attorney Suhana Han filed suit against Jefferson Dunn, Commissioner of Alabama Department of Corrections, and Walter Myers, Warden of Holman Correctional Facility, and others on behalf of Thomas Arthur, a death row inmate.

“Without an adequate anesthetic prior to administration of the second and third drugs, (Thomas) Arthur indisputably faces a substantial risk that he will experience excruciating pain — first from the suffocation induced by a paralytic, and then from the horrific burning feeling and cardiac arrest caused by potassium chloride,” the complaint reads.

The second is that those in charge of carrying out executions don’t regularly perform a “pinch test” which is supposed to verify if inmates are unconscious before giving them rocuronium bromide and potassium chloride — the other two drugs in Alabama’s three drug cocktail.

“According to (Thomas) Arthur’s expert, Dr. Mark Heath, the consciousness assessment is ‘the only thing that protects the prisoner and the state of Alabama from causing an inhumane execution,’” the plaintiff’s most recent complaint reads.

The complaint cites eight instances of when the defendants failed to administer the “pinch test” during executions, and argues that even when the “pinch test” was performed, that “ADOC corrections officers were not instructed, and did not know, how hard to pinch inmates when conducting the consciousness assessment.”

“Consistent with their efforts to shroud every aspects of the lethal injection process in utmost secrecy, defendants initially refused to provide (Thomas) Arthur’s counsel with a copy of Alabama’s revised protocol … When defendants finally provided a copy of the protocol in response to (Thomas) Arthur’s numerous requests, they provided a heavily redacted version.”

The plaintiff’s complaint had also been substantially redacted, with information removed such as the amount of time that lapsed between the consciousness test being performed and when the inmate was pronounced dead.

Also to be discussed during this week’s hearing is the availability of an alternative method to the way the state currently performs executions. Following a 2015 Supreme Court opinion in Glossip v. Gross, Arthur must suggest alternative ways to be executed in order to challenge the state’s current execution method.

“Although (Thomas) Arthur has identified such alternative methods of execution, he nevertheless objects to this ‘suicide burden’ in order to challenge an unconstitutional method of execution,” the plaintiff complaint states.

In previous filings, Arthur has suggested a firing squad as an alternative method of execution.

Watkins is unlikely to discuss whether midazolam could cause needless suffering in this hearing.

According to an order Watkins issued, that topic will be taken up in a subsequent hearing if plaintiffs are able to prove that there is a readily available, alternative method of execution.

The use of midazolam in lethal injection protocols has come under scrutiny when it was used in four botched execution from October, 2013, to July, 2014, in Florida, Ohio, Oklahoma and Arizona.

Alabama changed its protocol to include midazolam in September 2014. No Alabama death row inmate has yet been executed using midazolam.